Promise and Reality: Dui Hua’s Dialogue on Human Rights with the Chinese Government

Testimony to the Congressional-Executive Commission on China

October 7, 2009

Chairman Dorgan, Cochairman Levin, distinguished Members of the Congressional-Executive Commission on China,

I am honored to appear before this Commission to discuss recent developments in The Dui Hua Foundation’s long-running dialogue on human rights with the Chinese government. This is my third appearance before the Commission.

I would like to update the Commission on developments in five areas in which Dui Hua is active: Information on prisoners detained in political cases; use of special pardons to release long-serving prisoners; sentence reduction and parole for prisoners serving sentences for the crime of endangering state security; the death penalty; and juvenile justice. In updating the Commission, I will also be making recommendations for approaches to further dialogue on human rights with the Chinese government.

Information on Political Prisoners

Three years ago, a Chinese official told me that every year he has to look for information on more than 300 prisoners raised in the various human rights dialogues. Every time a name is raised, it increases the chance that the prisoner will benefit. Like in many countries, prison officials in China tend to treat prisoners who are known to the outside world better than those who are not known. For my testimony to this Commission in September 2006, I examined what had happened to prisoners who were on Assistant Secretary of State Lorne Craner’s 2001 list. Prisoners on that list enjoyed an early release rate triple that of prisoners in our database who weren’t on the list. In addition to having helped many non-violent political prisoners regain their freedom, we have also learned a great deal about how China’s justice system works in sensitive cases, knowledge that has informed our human rights dialogue with China. And we underscore our belief in the fundamental rights of individuals. You can’t talk about human rights without talking about human beings, and we must never stop raising the names of those who are in prison for exercising their internationally recognized rights of speech and association.

I urge the continued use of prisoner lists—the more refined and focused, the better—in future sessions of the dialogue between the US State Department, under the direction of newly confirmed Assistant Secretary of State Michael Posner, and the Chinese government led by the director general of the Ministry of Foreign Affairs’ Department of International Organizations and Conferences. And I hope this Commission will continue its own efforts to present requests for information on prisoners to Chinese officials who you meet.

In my last testimony, which I delivered just over three years ago, I recounted in detail the October 2005 decision of the Ministry of Justice to stop providing information on prisoners in response to my prisoner lists, which I had been submitting for 15 years. I continue to believe that the ministry’s decision was a bad one, and represented a blow to the spirit of dialogue. I have made representations to Chinese officials on numerous occasions, but thus far direct communications with the Ministry of Justice remain suspended.

In late September of last year, the Ministry of Foreign Affairs advised that it was willing to try to supply Dui Hua with information on prisoners from various sources, and since then it has resumed doing so. At the same time, local governments, working through unofficial channels, have provided information on prisoners in a number of provinces and municipalities, including Beijing, Shanghai, Chongqing, Guangdong, Hunan, Shaanxi, and Sichuan. In all, Dui Hua has obtained information on 60 prisoners over the past 12 months through various channels, principally those at the local level. This compares favorably with the number of cases about which Dui Hua received information in 2005, the year of the Ministry of Justice’s decision to stop responding to our prisoner lists, and the quality of most of the information we received represents an improvement on past years.

The responses to our lists reveal hitherto unknown sentence reductions and early releases for several long-serving prisoners. They also confirm that many prisoners have not benefited from clemency and continue to serve long terms for crimes like subversion and incitement to subversion. Dui Hua shares the information it receives from Chinese interlocutors with the State Department and this Commission by providing updated copies of our prison database each quarter. Dui Hua also publishes information in our quarterly newsletter and on our website, which unfortunately has been blocked in China for more than two years.

I view the willingness of the Chinese government to provide information on prisoners as an important test of transparency. Hopefully, the spirit of transparency which has characterized our interactions over the past 12 months will be in evidence as China carries out a series of human rights dialogues with key partners in the weeks ahead, including those with the EU and the United States. It is important for the United States and China to schedule their own human rights dialogue as soon as possible, hopefully before President Obama visits China in mid-November.

There is much room for improvement in making China’s criminal justice system more transparent. Although some provinces have started to publish verdicts passed by local courts (Henan Province has been a leader in this effort), most courts still don’t make their rulings public. And while most trials are supposed to be open to outside observers, including foreigners, gaining access to trials remains difficult in practice.

One of the focuses of our inquiries these past few years has been prisoners serving sentences for offenses committed in the spring 1989 protests that swept across China. The first time I intervened with the Chinese government on a prisoner was in May 1990, now nearly twenty years ago. The latest information I received on prisoners, early last month, concerned June Fourth prisoners. The wheel has come full circle.

A summary of the information we have received on 19 June Fourth prisoners over the past 12 months is appended to this testimony. Here are our key findings.

Altogether, Dui Hua believes that there are about 20 prisoners still serving sentences or otherwise detained at least in part because of the spring 1989 protests. This represents a decrease from our earlier estimates, the most recent being issued in May 2009.

As the countdown to the 20th anniversary of June 4th took place, local prison officials released or gave sentence reductions to people sentenced for a variety of crimes related to the disturbances. These individuals had been young workers and unemployed youth convicted of hooliganism, arson, counterrevolutionary assault, and counterrevolutionary sabotage. They had been sentenced in 1989 and 1990 to life in prison or death with two-year reprieve, later commuted to life in prison. (Crimes of hooliganism and counterrevolution were removed from China’s criminal law in 1997, but prisoners serving sentences for these crimes were not released, in apparent contravention of Article 15 of the Covenant on Civil and Political Rights, which China has signed but has yet to ratify.) Responses to our inquiries have revealed the recent releases of two counterrevolutionaries and sentence reductions for two other counterrevolutionaries imprisoned in Beijing.

With the release of Liu Zhihua (刘智华), Dui Hua is not aware of any other prisoner still serving a sentence for hooliganism committed during the spring 1989 protests. At least two prisoners—Jiang Yaqun (姜亚群)[*], a 70-year-old inmate possibly suffering from dementia, and Zhu Gengsheng (朱更生), who was last seen in TV footage as a young man atop a burning tank waving a flag near Tiananmen Square—are serving sentences for counterrevolutionary crimes in Beijing.

Three of the remaining June Fourth prisoners known to Dui Hua have been diagnosed with psychological illnesses: Miao Deshun (苗德顺) and Jiang Yaqun in Beijing and Yu Rong (余蓉) in Shanghai.

With the exception of Gu Xinghua (顾兴华) in Guizhou and Yu Rong in Shanghai—individuals who are not, strictly speaking, in prison for offenses committed during the protests—all June Fourth prisoners about whom the Chinese government has provided information are incarcerated in Beijing. Dui Hua continues to seek information on pockets of prisoners in provinces in southwestern and southeastern China.

In recent months, countries that have submitted prisoner lists as part of their dialogues have not matched Dui Hua’s success in obtaining information on prisoners. Of special interest to this Commission is the fate of the prisoner list handed over prior to the last session of the US-China human rights dialogue in May 2008. China’s Ministry of Foreign Affairs provided responses to about 40 percent of the more than 130 names on the US list, and no information has been received since July 2008, although there is some evidence that the MFA may have in fact already prepared some of the information. The State Department should make another effort to receive responses to the names on this list prior to drafting and submitting a new list for the next session of the US-China human rights dialogue.

Use of Special Pardons to Free Prisoners

In 2008 and 2009, Dui Hua called on the Standing Committee of China’s National People’s Congress (NPC) to exercise its powers under articles 67 and 80 of China’s constitution to issue special pardons of long-serving prisoners who had demonstrated good behavior and who no longer posed a threat to society. In 2008, we proposed that the Standing Committee of the NPC pass a special pardon to mark the Olympic Games. This year, we backed calls within China to declare a special pardon to commemorate the 60th anniversary of the founding of the People’s Republic of China, noting that Chairman Mao himself had proposed a 10th anniversary special pardon in 1959 that resulted in the release of tens of thousands of counterrevolutionaries.

Whereas the proposal for an Olympic pardon attracted little support in China, the idea that China mark its 60th birthday with a special pardon proved to be appealing to large segments of Chinese society. The proposal was endorsed by noted legal scholars and even the country’s top professor of criminology, as well as members of the Chinese People’s Political Consultative Conference, who put forward resolutions at committee meetings, some of which saw spirited debate. Articles by noted journalists supporting the special pardon appeared in mainland Chinese and Hong Kong media.

In the end, the Standing Committee of the National People’s Congress did not declare a special pardon to mark the 60th anniversary of the founding of the People’s Republic of China. It appears, however, that some provinces did grant clemency to prisoners to mark the anniversary. One of China’s largest provinces, Sichuan, granted sentence reductions and paroles to 1,300 prisoners on September 26. In Henan Province, courts approved 2,485 sentence reductions resulting in the release from prison of 1,166 inmates. In the Ningxia Hui Autonomous Region, 479 prisoners were given sentence reductions, 40 were granted parole, and 13 given medical parole on the eve of National Day.

No information is available on the breakdown of prisoners released by provincial courts to mark China’s National Day. We don’t know whether or not prisoners serving sentences for endangering state security were among those released, and probably won’t know for several more months. It appears that some provinces granted clemency to mark the Beijing Olympic Games in 2008 but this was not known until several months after the Games concluded. Some of those granted sentence reductions were serving sentences for endangering state security (ESS) and “using a cult to undermine implementation of the law,” a charge which is often applied to Falun Gong practitioners (“Reductions in Summer 2008 Show Signs of Clemency Around Olympics,” Dialogue newsletter (Issue 35, Spring 2009, p. 6), The Dui Hua Foundation.)

Although it was not intended to benefit any specific group of prisoners, special pardons to mark the Olympics and the 60th anniversary would have almost certainly applied to the remaining June Fourth prisoners, as well as to the remaining hundred or so counterrevolutionary prisoners. As with our work on the June Fourth prisoners, Dui Hua has been pressing to find out the fates of counterrevolutionary prisoners who received life sentences in the 1980s. Based on information provided by local authorities, Dui Hua believes there are very few counterrevolutionaries from this period still in prison. One is Jiang Cunde (蒋存德), a labor activist and dissident who is serving a sentence for counterrevolution that is set to expire in 2024. Like several long-serving June Fourth prisoners, Jiang is suffering from mental illness.

The most prominent prisoners serving sentences for counterrevolution are Jigme Gyatso (晋美加措) in Tibet (his sentence for setting up a pro-independence party is due to expire on March 30, 2014, and his health is said to be poor) and Hada (哈达), a Mongolian nationalist who founded the Southern Mongolian Democracy Alliance (his 15-year sentence will expire on December 10, 2010). Jigme Gyatso had his sentence increased three years. Neither Jigme Gyatso nor Hada have received sentence reductions.

Sentence Reduction and Parole for Prisoners

It has long been known that prisoners serving sentences for endangering state security (ESS) and “using a cult to sabotage implementation of the law”—the most serious political crimes—are granted sentence reduction and parole at rates considerably lower than other prisoners. Based on our research, Dui Hua estimates that ESS and “cult” prisoners receive sentence reductions at a rate 50 percent lower than the rate enjoyed by other prisoners, and in places like Tibet and Xinjiang, ESS prisoners almost never receive sentence reductions or parole. Even in some predominantly Han provinces, political prisoners are rarely granted clemency. According to the records of Chishan Prison in Hunan—that province’s principal prison for housing political prisoners—not a single counterrevolutionary or ESS prisoners was granted parole from 1996 to 2004, and very few were given sentence reductions (“Statistical Table of Sentence Reductions and Parole for Criminals in Chishan Prison from 1978-2004,” Hunan Province Chishan Prison Records (2005), published in Reference Materials on China’s Criminal Justice System, Volume 2, The Dui Hua Foundation).

A reason for the disparity between rates of sentence reduction and parole for prisoners convicted of ESS and “cult crimes” on the one hand and so-called “ordinary” prisoners on the other may be that, since ESS and “cult” prisoners are in prison for acting on their beliefs, they are less likely to demonstrate “genuine repentance and willingness to reform.” In other words, they are less likely than ordinary prisoners to think they did anything wrong and are therefore less likely to admit guilt, a prerequisite for receiving a sentence reduction. It should be noted that this is an untested assumption.

It has also been recognized that regulations on sentence reduction and parole might play a role in reducing the number of ESS and “cult” prisoners who are granted early release. In 1997, the SPC issued a notice requiring that sentence reduction and parole be “strictly handled” for prisoners serving sentences for ESS and certain other serious crimes, like leading a criminal gang. (Recidivists are also “strictly handled” when it comes to sentence reduction and parole.) “Strictly handled” is not defined in the notice, and it seems to have been left to provincial higher people’s courts to spell out what “strict handling” means in their respective jurisdictions.

In early 2003, Dui Hua asked the SPC to clarify whether counterrevolutionaries continued to be “strictly handled” after promulgation of the court’s notice on sentence reduction and parole issued in 1997. The 1997 notice makes no mention of counterrevolution among crimes that are to be strictly handled, but an earlier notice, issued in 1991—before the removal of counterrevolution from the criminal law—does. In its reply, the SPC took the position that counterrevolutionaries were viewed in the same manner as prisoners serving sentences for endangering state security. The reply further stated that the latter were dangerous criminals and that China, like many countries, makes sentence reduction and parole stricter for these prisoners than for prisoners considered less dangerous.

I conveyed this exchange to the State Department, and Assistant Secretary of State Lorne Craner suggested to his Chinese counterpart that a legal exchange take place on sentence reduction and parole in the two countries’ legal systems. This was the origin of the Legal Experts Dialogue. Three sessions of the dialogue were held between late 2003 and the summer of 2005. They were led on the US side by the Office of Legal Affairs of the State Department’s Bureau of Democracy, Human Rights and Labor. The Chinese side in the talks was led by a senior judge from the SPC.

Reporting on the talks, Assistant Secretary of State Michael Kozak testified to Congress in April of 2005 that the Chinese side had clarified that there is not a stricter standard for evaluating sentence reductions and parole for ESS prisoners (this testimony was also cited in the Commission’s annual report for 2005). The Chinese government has never commented on the talks, nor has it provided documentation on this policy of “equal access” to the State Department. It has not advised the State Department whether or how the policy was conveyed to courts in the provinces, which are the organs that approve applications for sentence reduction and parole. Signs have now emerged, however, that provincial higher courts were in fact informed of the clarification made at the Legal Experts Dialogue. As a result, some provinces may have loosened controls over pardons and sentence reductions for ESS and “cult” prisoners.

Dui Hua has recently found three notices issued by higher people’s courts that implement the provisions in the SPC’s 1997 Notice. Two notices, those of Shanghai (issued in 2003) and Shandong (2005), were promulgated before the last session of the Legal Experts Dialogue. One notice, issued by Guangdong in late September 2005, came out after conclusion of the talks.

In the Shandong notice issued just before the conclusion of the dialogue, there is a blanket prohibition against granting parole to prisoners sentenced for ESS. The Shandong notice also states that sentence reductions for ESS prisoners should be a year shorter than reductions granted to ordinary prisoners, and the initial reduction to a fixed-term sentence should be delayed an additional year.

The Guangdong notice, which was issued just after the dialogue, is modestly more equitable. It allows for parole in exceptional circumstances, though such paroles are to be “strictly handled.” And while it still mandates longer waits and shorter reductions for ESS prisoners, the disparity is only six months—half the duration laid out in the Shandong regulations.

We still know too little about local sentence reduction and parole policies to draw firm conclusions. The Guangdong notice indicates a loosening of strictures, which was possibly related to the talks between the United States and China. A rare parole of an ESS prisoner took place in Guangzhou in February 2008, that of the Hong Kong journalist Ching Cheong. Dui Hua has documented use of the Guangdong notice to grant a sentence to another Hong Kong resident, Chan Yu-lam (陈瑜琳) serving a long sentence for espionage (“Chan Yu-lam Sentence Reduction Sheds Light on How Prisoners Are Rewarded for Good Behavior,” Dui Hua Human Rights Journal, August 6, 2009, The Dui Hua Foundation).

On September 11, 2009, Secretary of State Hillary Clinton announced that the two countries would resume their Legal Experts Dialogue, separate but related to the official human rights dialogue. Among the topics that the dialogue raises, Dui Hua hopes that the status of sentence reduction and parole for prisoners convicted of ESS and “cult” offenses will be taken up again. Although it appears controls have been loosened in some provinces, prisoners convicted of ESS and “cult” crimes likely still suffer discrimination in the area of parole and sentence reduction. It is hoped that increased access to parole and sentence reduction for prisoners convicted of crimes like incitement to subversion and “splittism” will result in the early release of such prisoners. Promoting equal access to clemency for prisoners of conscience should remain a goal of our human rights policy in China.

Before leaving the topic of parole, I would like to mention the release of Jude Shao (邵裘德), a naturalized American citizen who was granted parole in July 2008. As in the United States, parole in China simply means that the prisoner continues to serve his or her sentence, but not in prison. A parolee in China must report on a regular basis to the public security bureau. This requirement has made it difficult for foreigners to receive parole. In the Jude Shao case, the Chinese authorities were convinced by the State Department to grant parole on the grounds that he could reside with family members in Shanghai. His release will hopefully serve as a model for the release of other American citizens incarcerated in China, the majority of whom are naturalized US citizens of Chinese descent.

Capital Punishment

As noted in this Commission’s previous annual reports, the return of the power of final review over death sentences to China’s Supreme People’s Court ranks among the most significant developments in the evolution of China’s criminal law in recent years. Although the return of review power, effective January 1, 2007, has contributed to a significant drop in the number of executions from highs witnessed in the late 1990s, problems with capital cases are legion, ranging from inadequate access to counsel, use of torture to extract confessions, and, in ESS cases like that of Wo Weihan (below), lack of access by the defendant and his or her legal representatives to evidence classified as state secrets. There have also been several high-profile executions of individuals sentenced to death for economic crimes. Thus far, the Chinese government has been unwilling to reduce the number of crimes that carry a death sentence, though it has advised the United Nations (during China’s Universal Periodic Review in February 2009) that it is willing to consider doing so.

One particular case in 2008, that of Wo Weihan, offered the world a rare glimpse into how capital punishment works in China and prompted renewed cause for concern. Wo was a businessman and scientist (and member of the small Daur minority) who was convicted of allegedly passing missile secrets and information about the health of a senior official to the Taiwanese government. However, his trial was closed, and the evidence against him was sealed as state secrets. Wo was the father of two Austrian citizens and the father-in-law of an American citizen, and after he was found guilty and sentenced to death, his children and his son-in-law fought hard to stop the execution. For the first time, China faced a concerted international campaign on the part of foreign governments and NGOs to halt an execution.

There are signs that there was internal debate in Beijing over whether to carry out the execution. Executions in China are, by regulation, supposed to take place within seven days of the issuance of the SPC review, unless the sentence is overturned. Wo’s execution took place at least ten days after the results of the review were issued. Moreover, Wo was executed after his family had been promised another visit with him. (At the first visit, Wo was apparently unaware that he faced imminent execution.) Ironically, the SPC issued an interpretation clarifying the procedure for stopping an execution four days before Wo’s execution took place.

Wo was executed by gunshot, but China continues to move in the direction of lethal injection as the preferred means of execution. Today, more than a third of China’s population resides in areas that use lethal injection. Chinese experts have variously asserted that China is moving to lethal injection in order to comport with international convention, or to avoid the transmission of blood-born diseases by gunshot, which reportedly compelled some executioners to wear rubber outerwear for protection. In either case, recent state media coverage of the move to lethal injection offers a modicum of transparency, which is cause for some restrained optimism.

Optimism must be restrained because China still executes more people every year than the rest of the world combined, although the exact number of executions remains a closely guarded state secret. The curtain was raised somewhat when the Ministry of Health revealed on August 26, 2009, that prisoners make up 65 percent of the donors for the approximately 10,000 organ transplants carried out in China every year. Organs from a single prisoner can be used in more than one transplant, but the revelation marks the first time that the Chinese government has acknowledged, however tacitly, that thousands of people are executed every year. Dui Hua estimates that around 5,000 people will be executed in China in 2009. Ten years ago, the number of executions in the country far exceeded 10,000 a year, according to incomplete data and other information collected by Dui Hua. Senior judicial officials have indicated that the present number of executions is still too high, and that use of the death penalty will be further curtailed.

Juvenile Justice

China ratified the UN Convention on the Rights of the Child in 1992, and soon thereafter began to work on reforming its criminal justice system as it applies to juveniles. (The United States is one of only two countries in the United Nations that have not ratified the convention; the other is Somalia.) Reform of China’s juvenile justice system was a priority in the SPC’s five-year legal reform plan that ended in 2007. Chinese delegations were sent to a number of countries, including Australia, Canada, the United Kingdom, Switzerland, and Germany, to study how different countries handle juvenile crime in the criminal justice system.

In 2007, Dui Hua began discussing an exchange on juvenile justice with the SPC. In October 2008, with the support of the John D. and Catherine T. MacArthur Foundation, Dui Hua hosted a six-person delegation from the SPC to study the juvenile justice system in the United States. The delegation visited Chicago, Washington, DC, Maryland, and San Francisco. They sat in on court proceedings, visited detention centers and “diversion” facilities, and held discussions with some of America’s leading experts in the field. The State Department helped ensure the delegation’s success, and the members were afforded the opportunity to discuss juvenile justice with Justice Anthony Kennedy, who wrote the decision in Roper v. Simmons, the 2005 Supreme Court case that found executing individuals for crimes committed before the age of 18 unconstitutional. (China has long prohibited the execution of people convicted of crimes committed before the age of 18.)

The delegation was rated a success by both Chinese and American participants, and a report on its findings has circulated widely in Chinese legal circles. The SPC has invited Dui Hua to organize a return delegation of American experts and practitioners to study China’s current juvenile justice in May 2010.

Juvenile crime in China has doubled over the past five years. Juvenile offenders—often the children of migrant workers—are mostly tried by tribunals under adult courts, but China has recently begun to establish separate juvenile courts. The ultimate goal of the reform movement is to have all juvenile crime tried in juvenile courts according to a juvenile criminal procedure law. At present, no juvenile under the age of 14 can be incarcerated. Juveniles above this age can be detained in “work study camps,” facilities that bear striking resemblance to “reeducation-through-labor” camps in China and “boot camps” in the United States. Serious juvenile offenders aged 17 and below are incarcerated in juvenile prisons, from which they can be transferred to adult prisons to continue serving their sentences once they reach the age of 18. Chinese judges and legal scholars are interested in the rehabilitation of juvenile offenders through use of alternatives to detention, and the critical role played by the probation officer in the US system. Members of the October 2008 SPC delegation were also interested to learn about how the development of the adolescent brain determines adolescent behavior (though they initially expressed skepticism about the importance of brain development on behavior). In addition, the delegation was struck by the racial bias apparent in the US juvenile justice system.

I believe that juvenile justice is an area of human rights where the two countries can cooperate to their mutual benefit. We should identify other such areas and introduce them into our dialogues on human rights and legal reform. We could well find that working together in areas where the countries share common interests—and what is more basic to both societies than protecting the rights of juveniles—enables us to reach better understanding and positive results in areas where we don’t see eye to eye.

This concludes my testimony to the Commission. Thank you again for inviting me to testify, and I look forward to your comments and questions.